California has become the largest state to pass some version of the “4th Amendment Protection Act” in one of its lawmaking bodies. The Golden State’s senate passed the bill on Monday, and the bill likely will come before the state assembly later this summer.

Further Reading

"Nullify NSA" wants to use state law to stop spooks. Lawyers say, "not so fast."

As currently drafted, the California bill prohibits “the state from providing material support, participation, or assistance to any federal agency attempting the illegal and unconstitutional collection of electronic data or metadata, without consent, of any person not based on a valid warrant that particularly describes the person, place, and thing to be searched or seized or a court order, or in accordance with judicially recognized exceptions to warrant requirements.”

State Senator Ted Lieu (D-Torrance), who authored the bill, told Ars that the bill is a “substantive and symbolic” way to counter the effects of the National Security Agency (NSA). Lieu is an Air Force veteran who served as a prosecutor in the Judge Advocate General corps, and he currently serves as a Lt. Colonel in the Air Force reserves.

“There's nothing that says that states have to cooperate with a federal agency,” he said. “States can do what they want so long as they don't violate the law. We see no statute that says that the 50 states have to follow NSA's orders. Let's say the NSA wants to track down 100,000 people in California and they want it from the employment database. [The bill] would say no, you're prohibited from giving it. [Federal authorities] would have to get it through other means. The states can't stop them, but we can make it harder to violate constitutional rights.”

Throwing up obstacles

Legal experts wonder if this bill is merely symbolic at best.

“Like I’ve said before, I think the real import of these kinds of bills is to send a strong signal that states are not only uncomfortable with the NSA’s spying, but they also reject the legal rationale behind much of its warrantless surveillance,” said Hanni Fakhoury, a staff attorney with the Electronic Frontier Foundation. “The bill makes clear that obtaining any of these sorts of records or data without a warrant is illegal.”

“A state—even California!—cannot regulate the federal government, but what this Act does say is that state officials will not cooperate,” Ruthann Robson, a law professor at the City University of New York, told Ars. “This could have a significant impact if federal officials are relying on state law enforcement. It could also mean that a person who is being surveilled could sue state officials and receive money damages, if someone could prove the state officials cooperated in an infringement of that person's state constitutional rights.”

Robson cited, for instance, frequent and ongoing cooperation between the New York Police Department and federal agencies. And as presently written the bill would only apply to state agency activity such as that. Fakhoury said he never actually heard of a situation where a federal agency asked a state agency to hand over data. More often than not, it's companies that are targeted for data handover and are compelled to do so under court order. Still, the attorney believes the bill could have some modest impact on future cases.

“But the rejection of the legal rationale is interesting in my opinion because in a way it could impact state law in the future,” Fakhoury added. “That means the next time a criminal defendant in a state court case raises a challenge to a state law enforcement’s agency’s warrantless collection of these types of records, there’s a stronger argument that the California legislature disapproves of this warrantless request as evidenced by this bill. It's obviously not binding law on those state officials, but again it shows the legislature’s intent.”

Nullification

For the moment, nearly all the bills that have been proposed or floated appear to come from a group calling itself “Nullify NSA.” Its website provides no contact information beyond a Twitter account and a Bitcoin address. The site provides “model legislation” at the state and local level, and it says a “campus resolution” is coming soon.

In an e-mail, “Michael B.” previously told Ars that Nullify NSA was organized by the Tenth Amendment Center and the Bill of Rights Defense Committee. These are groups that advocate constitutional nullification, the legal theory that an American state can nullify, invalidate, or ignore federal law that it doesn’t like.

State Sen. Lieu compared it to the federal law that makes marijuana a crime, while under California state law, it remains legal for medical purposes. In short, federal agencies likely could still raid state offices if they wanted to, or the NSA could simply surreptitiously intercept data as it sees fit.

“We don't quite know what the NSA does or doesn't do, but we do know that there often is cooperation,” he said. “I support much of what the NSA does and they do protect America. My problem is specific programs, like bulk collection. I am a strong believer in national security until it violates the constitution.”